Wednesday, 28 May 2014

Drones: the UK debate and its implications for the EU

By Chris Jones

A new report, Back
from the battlefield: domestic drones in the UK, examines the use of drones by public and private actors within the UK, focusing
in particular on law enforcement and border control authorities, law and
regulation, and public and private funding for technological and regulatory
development. As well as looking at the current situation, the report considers
potential future developments and argues in this respect that public
discussion, debate and decision-making is needed before the use of drones – in
particular for surveillance purposes – becomes widespread.

Due to a lack of safety guarantees and regulatory framework
the use of drones in the UK remains limited, particularly amongst public
authorities, although there are moves to introduce them more widely. Currently
it is private companies dealing with surveying, mapping, photography, filming
and safety inspection that use the vast majority of drones licensed for
operation within UK airspace. However, as technology develops and becomes more
widely available this is likely to change, and various attempts are being made
to drive this development and capitalise on what is perceived as a significant
market for ‘civil’ drones.

Public pounds

A key role in this push is played by millions of pounds of
public and private funding that has gone towards technological and regulatory
research and development. Over the last decade some £80 million of public money
has gone towards research for and development of domestic drones or the
technology required for their use, although given that research into military
drones may be applicable in the civilian sphere, the total amount is likely to
be significantly higher.

The UK’s flagship research programme, ASTRAEA, received
public funding of £32 million, which was matched by the private sector. ASTRAEA
sought to develop the technology necessary to allow routine drone flights in
domestic airspace. It has had little to no regard for privacy, data protection
or other civil liberties and human rights considerations, and appears to have
been drawn up and implemented by large arms firms – including BAE Systems,
Cassidian, Cobham, Rolls-Royce and Thales – and state officials with no
democratic input or oversight.

Civilian drone research and testing in the UK looks set to
further benefit over the coming years following the September 2013 launch of
the National Aeronautical Centre, a private site which will enable “the
development, testing, evaluation, training and demonstration of UAS that can
fly beyond visual line of sight”. The launch of the Centre adds to pre-existing
drone testing facilities in west Wales, until now primarily used for defence
purposes but now “open to civilian and military contractors and operators,”
with “the capacity to deliver the necessary services and accommodation for all
sizes of UAS envisaged for production and development over the next 20 years.”

While it is unknown exactly how much funding private firms
have put into drone research and development over the last decade, for those
projects examined in the report funded jointly by public and private bodies,
public funding has consistently been more generous. This differs little from
many established models of public investment in technologies not yet considered
‘market-ready’, but it remains worth noting that it is ultimately private
companies who will reap the financial benefits of the development of the
supposedly multi-billion pound domestic drone market.

In this respect, and as with the ongoing attempts by the European
Commission to see drones introduced more widely in domestic airspace (see its recent report), the role of state authorities in ‘market creation’ is clear to see. Information
has recently come to light on the UK’s “Cross Government Working Group on
Remotely Piloted Aerial Systems”, which has a number of aims, one of which is:
“To identify and address barriers to a successful UK industry base, to support
the Government’s growth agenda.”

Civil liberties
concerns

Notably, there is no mention of privacy or civil liberties
in the Cross Government Working Group’s list of priorities. In this respect the
government has already set out its stall, with Policing Minister Damian Green
telling Conservative MP Nicholas Soames in May 2013 that:

“Use of unmanned aerial vehicles
would need to comply with existing Civil Aviation Authority regulations. Covert
use by a public authority likely to obtain private information, including by
any law enforcement agency, would be subject to authorisation under the
Regulation of Investigatory Powers Act [RIPA] 2000... Any overt use of a
surveillance camera system in a public place in England or Wales will be
subject to a new code of practice prepared under the Protection of Freedoms Act
2012, on which the Home Office is currently considering its response to
statutory consultation.”

However, both RIPA and the new (voluntary) Surveillance
Camera Code of Practice contain numerous shortcomings and neither applies to
private bodies or individuals. RIPA in particular has been routinely criticised
by lawyers, campaigners and charities, with the legal support charity JUSTICE
arguing that it “fails to provide adequate safeguards against unnecessary and
disproportionate surveillance” and is “inadequate to cope with such
developments as aerial surveillance drones, Automatic Number Plate Recognition,
deep packet interception, and, indeed the Internet itself.”

Considering these inadequacies – and in the light of ongoing
revelations about mass telecommunications surveillance by security agencies and
the highly controversial use of undercover police officers in protest movements
– there is arguably a need for a thorough revision of the UK’s legal and
regulatory framework surrounding all forms of surveillance.

The equally crucial issues of safety, airworthiness and
pilot training are dealt with in the UK by the Civil Aviation Authority, and
broadly speaking it appears that current regulations address these issues – for
example, the propensity of drones to crash – relatively well. However, there are
concerns over the use of drones weighing less than 7kg that remain out of scope
of CAA regulations, particularly with the growing construction, purchase and
use of drones by individuals.

While enforcing a regulatory and legal framework to cover
‘DIY’ drones, particularly those that are particularly small, may be difficult,
the adoption of such a framework will become increasingly necessary as
‘private’ drone use increases. They are highly prone to crashing and people
have been killed and injured by falling drones. The risk is significant: earlier
this month the US equivalent of the CAA, the Federal Aviation Authority (FAA),
revealed that a small drone nearly collided with an airliner over Florida in
March 2014, which could have had “catastrophic results”. Growth in the use of drones by private companies also calls into question the
reliance of the government on a voluntary Surveillance Camera Code of Practice
and the provisions of the Data Protection Act, passed into law in 1998 when
surveillance by aerial drone was a distant prospect.

The boys in blue

Responses to Freedom of Information requests issued to every
UK police force show that eleven forces are known to have used drones, but that
the technology is only currently used by two – Staffordshire and the Police
Service of Northern Ireland. Drones have been used these two police forces for
a variety of purposes (most widely by Staffordshire), including for the
monitoring of demonstrations, the surveillance of poachers, and in attempts to
deter anti-social behaviour and track criminals. Other forces have had less
luck: Merseyside police trumpeted their capture of a car thief after deploying
a drone to hunt him down when he fled the vehicle, only to be ticked off by the
Civil Aviation Authority and banned from using their drone after it emerged they
had never obtained a licence.

Further away from the public eye, the Serious Organised
Crime Agency (now replaced by the National Crime Agency) appears to have acquired
the use of drone technology in late 2012. In December 2012 the agency signed a
£9 million contract with Selex ES for five years’ work on “managed air support
services”. Selex ES doesn’t produce planes or helicopters, but does manufacture
and sell “advanced Unmanned Aerial Systems (UAS) to customers worldwide to
enhance their situational awareness capability.” SOCA's contract with Selex ES
came at the same time as Britain's police forces began regularly employing
"national security" exemptions when responding to Freedom of
Information requests on drones, allowing them to neither confirm nor deny
whether they held any information on drones if it was related to the Serious
Organised Crime Agency

Over the years the police approach to unmanned technology
has become increasingly centralised. An Unmanned Aerial Systems Steering Group
run by the Association of Chief Police Officers (ACPO) and the National Police
Air Service, established in October 2012, currently keeps chief constables from
around the country up-to-date on developments, and a single technical
requirement for police a drone has been developed by the Home Office. Police
representatives are presumably also involved in the Cross Government Working
Group noted above.

While the National Police Air Service has remained
tight-lipped over what information it holds on drones, referring questions back
to ACPO, it does not seem that the widespread acquisition or deployment by
police forces of drones is an immediate proposition – meaning that the time for
a meaningful debate on the issue should be now.

Drones for border
control?

Revelations in 2010 that Kent Police and the UK Border
Agency were working in partnership with BAE Systems to develop drones for the
monitoring of the UK’s borders were met with concerns from civil liberties
organisations, with other suggested uses including monitoring fly-tippers and
cash machine thefts. That project – known as the South Coast Partnership – no
longer exists. In fact, it seems that Kent Police – who subsequently tried to
downplay the project as “never a structured arrangement” – were unceremoniously
dumped by BAE Systems. They “communicated by telephone” the news that the
project was over, and the force claims to hold no documentation in relation to
it.

Kent Police have, however, taken on a role in a
cross-border, European Union-funded project with French and Dutch authorities
and institutions that has a similar objective: the use of drones for border
control, along with critical infrastructure and environmental monitoring. Called
3i, it has received half the total costs (€1,854,571) from the European Commission’s
Directorate-General for Regional Policy. Kent Police, one of fourteen partners,
received €53,421 of this.

The project aims to “deliver a prototype of an unmanned
aerial vehicle and contribute to the knowledge base on [UAVs] and their
application for maritime security,” including incident response, preventive
patrolling places of interest, and critical infrastructure monitoring. One use
includes monitoring “unexpected movements of small craft across frontiers (to
smuggle commodities or people),” which may make it of interest to ACPO’s Unmanned Aerial Systems Steering
Group – it was noted at one meeting that drones deployed at the border would be
particularly useful for “securing the borders from refugees and drug
importation.”

A democratic debate

Ultimately, the report argues that the fears raised in media
reports in recent years – skies awash with high-powered state surveillance
drones – have not yet come to pass. For this reason, it is urgent that a public
debate on domestic drones takes place sooner rather than later, and that
decisions on acceptable limits for their use are taken in an open and
democratic manner – not in secretive working groups and industry-dominated
research consortiums.